There are some cases in which the argument tells us a lot more about likely outcomes than the briefing. Tuesday’s argument in Sebelius v. Cloer was one of those. As a general rule of thumb, if you are arguing on behalf of the Solicitor General, it is a pretty bad sign if Justice Scalia dismisses your sovereign immunity argument out of hand. So when that happened early in the Sebelius argument on Tuesday, the signs indicating a ruling against the government could hardly have been more clear.

The case involves a most unusual statutory scheme that provides no-fault compensation for individuals who suffer adverse reactions after taking a vaccine. A claimant who suffers a covered injury seeks relief by filing a petition with the Secretary of Health and Human Services (currently the petitioner, Kathleen Sebelius). The petition is adjudicated by a special master and reviewed by the Court of Federal Claims; all appeals go to the Federal Circuit. Awards come from a fund generated by a small tax on vaccines covered by the program. Among the other oddities of the program, the statute provides that the fund will pay attorney’s fees for all petitions (meritorious or not) filed in good faith and with a substantial basis.

The specific problem here arises because the respondent, Dr. Cloer, filed her claim for compensation out of time. Although reasonable minds could differ on that question (she prevailed before a panel of the Federal Circuit), ultimately her petition was held untimely. Still, recognizing the substantial basis for her view that the petition was timely, the Federal Circuit authorized an award of fees.

In the Supreme Court, the briefing presented two diametrically opposed views of the statute. The government relied most heavily on the argument that waivers of sovereign immunity must be construed narrowly. Because it is so rare for Congress to require the payment of attorney’s fees for losing parties, the government argued that the Court should be most reluctant to read the provision so broadly as to apply even to cases that were not filed within the statute of limitations. Dr. Cloer, in contrast, emphasized that in ordinary parlance a “petition” is “filed” when it is presented to and accepted by the relevant government office, something that unquestionably happened here.

The government’s argument collapsed entirely under withering and unceasing questioning that began the moment Benjamin Horwich rose for the government. Horwich’s basic argument is that because the statute of limitations says that no “petition” may be filed out of time, and because attorney’s fees are available only for “petitions,” an untimely filing is not a “petition” for purposes of the attorney’s fees provision.

The problem, which Horwich could not evade, is that there are numerous provisions of the statute that under any sensible reading have to extend to filings in the traditional sense – pleadings presented to and accepted by the filing office – whether or not timely. Thus, Horwich’s argument dissolved into a series of confrontations about such provisions. Justice Ginsburg, for example, asked about a provision that requires respondent Sebelius (as head of HHS) to publish a list of “petitions” in the Federal Register. After first making the embarrassing admission that HHS “has not been complying with that provision for the last few years,” Horwich agreed that when HHS last complied, it included timely and untimely filings in the published list. (Indeed, Robert Fishman pointed out in his argument for Dr. Cloer that the untimely filing in this case was published in such a list – essentially an admission by the government that it was a “petition.”) Similarly, in a conversation with Justices Kagan and Kennedy, Horwich acknowledged that the Special Master’s report to the Court of Federal Claims on “petitions” does not distinguish between timely and untimely filings.

Next in line was Justice Scalia. Horwich attempted to distinguish the conversations with Justices Ginsburg, Kagan, and Kennedy as dealing with matters resolved at the beginning of the case, when timeliness will not yet have been addressed. Horwich argued that because the attorney’s fee determination comes at the end of the case, when timeliness will have been examined, the exclusion of untimely filings would make sense then. But Justice Scalia then asked whether a judgment dismissing an untimely filing was an appropriate response. When Horwich said that it was, Justice Scalia pointed out that the statute authorized judgments only in response to “petitions.” To him, this proved that Horwich’s argument “simply doesn’t fly.”

When Scalia asked Horwich if he had a second argument, Horwich retreated to the canon calling for narrow interpretations of waivers of sovereign immunity. Here, Justice Scalia abruptly cut him off, rejecting Horwich’s argument out of hand:

Well, wait. Congress has waived sovereign immunity. It’s absolutely clear that there’s a waiver of sovereign immunity here. . . . And once we find that, I don’t think we nit-pick the following language to unrealistically narrow it as much as possible. . . . [O]nce it’s clear that [Congress] has agreed to be sued, I think we just interpret the language reasonabl[y].

From a broad perspective, the argument was reminiscent of the famous Monty Python “cheese-shop” sketch, in which John Cleese assures the patron that he has many varieties of cheese, just not the one for which the patron is looking. However Horwich tried, he was unable to come up with an example to persuade the Court that his reading makes sense of the statute. This is not to suggest any failing on his part – a fair reading of the briefs suggests that the case stands or falls on the narrowing sovereign-immunity canon. When Justice Scalia rejected that argument, the case seemed all but over.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.